The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-08-31
SUPREME COURT CASES
Reported FOR The cIsriea ss w. II Harper
Aftorasy-st-lss, Jsskson, Mss.
April Term

Appeal from the Chsncery Court oil
Noxubee county. Hon. F. A. Critz
Chancellor.
Jarnsgin & Boyle, Brame & Alexan-
der and Orr & Sims, for the appellant.
| Rives & Rises and Evans & Baldwin,
for the appellee.
In 1854, L. y. and Henry c. Holberg
were conducting a mercantile business
iD Macon. under the firm name Of Hol-
berg & Bro. In December, 1854, the
Hoibergs began to fear their insolvency..
and consulted and advised with their al
/ torneys, Jsrnagin & Boyle, in reference
thereto In January, 1885, jacob Hol-
berg, an uncle of l.. \. an& II. c. Hol-
berg, who had loaned them about
IS. 500, and was their surety to other
creditors for about $4,000, required his
nephews 10 take an inventory of their
stock, when it was discovered that they
were insolvent Jacob Holberg, desir-
Gus Of securing himself, aud l.. y Hol-
! berg & Bro. desirous OF securing their
uncle and certain other creditors, to-
gether again consulted Jaruagiu < Bo-
gle, when the following plan was there
/ determined on aud carried out: The
NEtQAlofS u 1otbHAE - btN- 70 hS SC
cured were to put their claims In the
hands ~ ,--2rnagiu 4 Boyle, and Jacob
/ Ho,berg wrote 10 tthlssm 10 that effect and
they did so. Jarnagin 4 Bosle prepared
declarations Oh the several clalms,-ssnl
five days prece ing the term of the cir
cult court, had Ne defendants, Holberg
| x Bro, TO waive service and grant per
mission in writing on such declarations
| that Judgment might be rendered there
on at the first term of and on the first
day of court. This was done IN the
presence of the circuit clerk and at the
office of Jarnagiu & Boyle. Thereupon
| the clerk took the declarations, went to
| his Office, made an entry on his docket
of the number of each case and the
plaintiff, and left blank for the name
OF the defendant, aud then returned the
| declarations to Jarnagin & Boyle. When
| the docket was sounded on the first day
of court the name of the defendant was
| inserted in each case, the declarations
read aud judgments entered thereon and
earolled, and on the day following, to
wit: Feb. II, 1881, f. ;. Jatfray X Co.
and certain other creditors Of Holberg
| & Bro, who were not included IN the
scheme above set out, on discovering II,
caused attachments to be levied on their
goods, it being the only property
the Holbergs bad. On February IS,
1887, this same stock of goods was lev
led on under the judgments above refer
red to.
The sheriff being unable to secure in-
surance on the stock OF goods, advertised
| the same for sale on ten days notice
He caused an inventory TO be taken OF
| the stock. aud this showed the stock 10
be worth something more than nine
| thousand dollars On the day of the
sale. ATTORNEYS for the attaching creditors
appeared and tried to have the same
| continued, and gave the sheriff notice
l OF to paw over any money to the Judg-
n ont creditors, as they intended 10 at
| Ga K said judgments as being fraudulent,
null and void. 1t seems that the sheriff
gave them assurances that he would, at
least, obtain the proceeds of the sale
| Thereupon the goods were sold TO Jacob
Holberg, he being the only bidder, Tor
$1,000. Ry an arrangement between
the Judgment creAitors, Jacob Holberg
and the sheriff, the goods we're turned
over to Jacob Holberg, and IN lien OF
cash, in payment therefor, the sheriff ac-
cepted the receipt of the judgment cred
itors for amounts equal TO their Judg-
ments up to the amount of the bid.
On Sept. 3, 1885, E. 5. Jafray x Co.
and other attaching creditors exhibited
this bill against L. n. Holberg, Jacob
Holberg, Is. NJ. Walker, sheriff, and the
several Judgment creditors, IN which
they alleged that the whole pro
ccediug was fraudulent plan
or scheme to make jacob Hol-
berg buy in the stock of goods cheap,
and that the sheriff and the other de-
PENDANTS colluded together to effect the
purpose. The bill asks that the Judg-
ments be held void as against complain
ants; that the sheriff be held RESPONSE
bic for the proceeds Of the goods, and
that personal judgments be rendered In
kfavor of complainants against the sheriff
land Jacob Holberg. The Chancellor, by
his decree, granted the prayer OF the
bills The defendants Appealed: Inc
opinion of the court states the ei1ect OF
| the evidence on the question OF fraud.
Complainants introduced evidence
/ which tended to show that the stock OF
goods was worth about Sl3,0OO.
| CAnpBEL.., J., delivered the opinion of
the Court.
l.. y. Holberg & Bro. had the right
to prefer creditors, and did it by con-
senting for judgments to be gwen
against them, so as to create liens IN
favor of the several creditors on their
goods, and thereby secure precedence OF
satisfaction to them ont of the goods.
In this there is nothing forbidden by
law. and we find nothing in the mode OF
obtaining the judgments which the law
condemns. The secrecy observed IN
reference to docketing the cases was
precaution, merely, against publicity
which would incite attachments and de-
feat the scheme of securing precedence
to the creditors preferred, and was no
more than characterizes the movements
of falling debtors who make preferences
by assignment or by sale of property.
We have failed to discover IN the Yo-
luminous record any evidences OF fraud
or other state Of case than the very com
mon one of insolvent debtors anxious to
prefer certain creditors, and doing 1t IN
the way proposed and conducted by
counsel, and there is nothing in the fact
that the counsel acted both Tor the
creditors and the debtors. The question
is what was done, and not by whom 1t
was effected. The evidence shows that
the goods were sold for a fair price,
much more, probably, than they would
have brought under other clrcum-
stances; and we have no hesitation TO
say that had Jacob Holberg bought the
goods at the price paid, at private sale,
in payment of what was due him and
Others, and taken possession oi them
without any judgment, be would have
. obtained an unassailable title to them
on the facts presented by this record
The charge of the bill that there was a
scheme to enable Jacob Holberg to ac-
quire the stock of goods at low price
is unsustained. It does appear that
counsel for attaching creditors were mis-
led as to the money arising from sale OF
the goods being and remaining IN the
hands of the sheriff, but that made nc
difference in the rights of any party
The money was considered as in tht
sheriffs hands. He was responsible fol
it, and if he paid it out wrongfully OF
accepted as money the receipt OF one
not entitled to it he could and would b'
dealt with as having it in his hands.
The decree is mani festly wrong, anC
is reversed and thebill disnissed, ane
judgment here against complainants foi
costs in both courts.
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